Grygiel v Australian Broadcasting Corporation

Professor Grygiel is an oncologist of some eminence. His treatment of certain patients was the subject of a story on the ABC’s flagship current affairs program, 7.30, on 18 February 2016. I am informed from the bar table, and it is common ground between the parties, that that story has been picked up by reputable, and otherwise, media outlets not only in this country but also abroad.

The gravamen of the story is that Professor Grygiel administered wrong doses of cancer treatment to a cohort of as many as seventy patients; that this had been the subject of an investigation at the hospital where he carried out the treatment; that as a result of that investigation he had been disciplined; and that his right to treat patients in accordance with his Hippocratic oath had been refused or denied to him as a result of that investigation.

Those short facts need only be stated to make clear, as Mr Brennan of Counsel has submitted, that if the facts are false a most egregious defamation has occurred.

Professor Grygiel has brought an application for an interim injunction restraining the publication of a follow-up story on 7.30 tonight. In support of the application, the affidavit of his solicitor, Mr Stephen Blanks, affirmed today, has been read. It is the only evidence about the content of the follow-up story that Professor Grygiel is in a position to put before me.

To understand the significance of the evidence before me, one has to understand that part of the story on the 18th was that the hospital said it was contacting the patients concerned to discuss the matter with them. With that background, Mr Blanks affirms, and it is not disputed, that a journalist with the ABC informed him of the following:

I suppose in one sense any criticism which may be implied in that summary is directed at the hospital for not contacting patients yet but it does repeat or republish part of what Professor Grygiel says is defamatory. That is, that he administered wrong doses to the patients concerned including the patient who may be on the television tonight.

Professor Grygiel, through his solicitor, has also provided a statement to the ABC covering many matters. Importantly, the statement demonstrates that Professor Grygiel steadfastly and staunchly maintains that he has not mal-administered any cancer treatment as alleged. He accepts that there are guidelines and, indeed a protocol, in relation to the treatment but he says that guidelines are just that and that decisions about the actual therapeutic dosage to be administered to a given patient depends upon clinical expertise, judgement and experience. He maintains that in every case, using his judgement and experience, he administered the appropriate dose for the disease the patient was suffering from. He also vehemently denies that he has been disciplined, that he has been the subject of any investigation and that his right to practice as a legally qualified medical practitioner has in any way been restricted.

He, incidentally, says that he was consulted by the hospital prior to 7 30 interviewing the Director of Cancer Services and what he was led to believe would be said was departed from in significant ways during the interview actually carried out. Whether that says more about the skill of the interviewer than otherwise is not a matter which I need dwell upon for present purposes.

The basal principles informing the exercise by the courts of the jurisdiction to grant interlocutory injunctions apply equally in cases of alleged defamation. But the application of the principles is subject to specific elucidation by the High Court of Australia in Australian Broadcasting Commission v O’Neill [2006] HCA 46; 227 CLR 57. In the joint judgment of Gummow and Hayne JJ their Honours recited the relevant principles established by the previous decision of the Court in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1; 118 CLR 618 (Beecham Laboratories). The first principle is that the plaintiff must make out a prima facie case and that will be done if the evidence tendered on the application discloses a probability that at the trial of the action the plaintiff will be entitled to relief. The second principle or ground of enquiry is:

That second consideration is commonly referred to by lawyers as the balance of convenience. It is that second aspect that assumes some significance in defamation cases.

I pause to indicate that on the basis of the material presently before me I have every confidence to the degree necessary, that there is a probability that if Professor Grygiel’s version of events is accepted he will be entitled to relief in the form of damages for defamation.

I turn then to the balance of convenience aspect of the test. As Mr Dawson of Counsel reminded me, in the joint judgment of Gleeson CJ and Crennan J much emphasis was placed upon the public importance of the fundamental right of free speech of which freedom of the press is a very important aspect. At [31] of their joint judgment their Honours said this:

The reference to issues unresolved is a reference to the necessary provisional, truncated hearing that attends an application for interlocutory relief of this type. Obviously, I am not in a position to make a decision about the merits of either party’s case.

Mr Dawson, however, has referred to the following matters which are especially questions for the jury. The first is the potential availability of viable defences. He points to what he submits to me is the reliability of the source, that is to say the Director of Cancer Services. Certainly, one might think that a media outlet was well justified in relying on a person with those specialist qualifications who held such a responsible position in an organisation like a hospital who was designated as the person to speak to the media on behalf of that organisation.

Other aspects, of course, are those of qualified privilege and public interest. So far as those matters are concerned, Mr Dawson has referred to the decision of McCallum J, the judge who conducts the Defamation List, in Daniels v State of New South Wales (No 6) [2015] NSWSC 1074 that the questions of reasonableness which are bound up with qualified privilege and the public interest are essentially matters for a jury. This echoes what Gleeson CJ and Crennan J said.

Although I have said that if Professor Grygiel’s version is correct, a most egregious case of defamation will have been perpetrated, that is not to say that these defences are not open arguably as real issues to be determined at a trial which most likely will be conducted before a judge and a civil jury.

I have great sympathy for Professor Grygiel’s position. It is, no doubt, extremely hurtful for an eminent professional otherwise recognised as a leader in his field to be the subject of such allegations which he hotly contests. On the other hand, I accept the force of the argument that a greater interest may possibly be involved and there can be no doubting the aspect of public interest not only in the general principle relating to freedom of the press but also in the particular story.

One needs to bear in mind that, although these allegations are serious, the interests of the patients are also involved and if the allegations are even possibly true, although it would be harmful if those persons who were cancer survivors were unduly alarmed, at the same time it is appropriate that they receive information about the allegations.

My sympathy for the position of the plaintiff cannot displace the application of the principles of law to this case. Although I am satisfied that he has made good the first limb of the Beecham Laboratories test, for the reasons I have given, I am of the view that the balance of convenience does not favour the grant of even a short-term interlocutory injunction.

I wish to add only that it is true that the injunction is sought only for a short time until Friday when the matter might come before the defamation judge. However, such a short-lived injunction would, I think, be of no utility to Professor Grygiel given that this story has been published so widely.

I accept that the publication of the story tonight will by necessary implication involve a replication of the broader allegations and not just the patient’s account and that, of course, may amount to a republication of material that may be defamatory. However, it seems to me, that for the reasons I have given, that the balance of convenience does not favour the grant of what is usually a jealously guarded and confined remedy in this particular area of legal discourse.

I record that through his solicitor, Professor Grygiel did offer the usual undertaking as to damages.

The application for an injunction is refused.

The ABC applies for costs and by the application again of established principle, which Mr Brennan properly concedes he cannot resist, I must accede to that application.

The plaintiff is to pay the defendant’s costs of and incidental to this application on the ordinary basis forthwith after they have been agreed or assessed.